Law Offices of Robin Bresky Obtains Ruling in Petition For Writ of Certiorari in Probate Matter

The firm, through Of Counsel attorney Michele Feinzig, recently obtained an advantageous ruling in a Petition for Writ of Certiorari proceeding we filed in the Third DCA in a contested probate matter. Paraphrasing the words of Judge Suarez, who wrote a concurring opinion, the facts were unusual to say the least. Our clients were three elderly ladies who are citizens and residents of Austria. They asserted a claim in the Miami-Dade Probate Court as heirs to their deceased half-sister’s intestate (without a will) Estate, but when discovery ensued, complications arose. The decedent’s niece and nephew, who also asserted claims to the decedent’s Estate, sought to take our three clients’ depositions, but they all have medical problems that prevent them from traveling by air to the United States. The Miami-Dade Probate Court agreed that two of the ladies were medically prohibited from flying to the United States, and ordered their depositions to take place in Austria at their expense. The Probate Court also permitted the third lady to be deposed in Austria. When the time came to actually schedule the depositions, however, a dispute arose between the attorneys as to what travel expenses would be paid, and when that issue went before the Probate Court, the Court entered an order finding it would be too difficult to take the depositions in Austria. The Probate Court also ruled that because two of the ladies were medically prohibited from traveling to the United States to be deposed, their claims “may not proceed” and the court would consider dismissing their claims at the appropriate time. The Probate Court also ruled that if the third lady wanted her claim to proceed, she would have to appear for her deposition in Florida within 45 days.

Since the Probate Court’s order was not a final order, we believed it was prudent for the three Austrian ladies to seek relief by way of a Petition for Writ of Certiorari, even though such relief is rarely granted, because otherwise, the ladies risked being cut out of their deceased half-sister’s Estate for unjust reasons (their medical inability to travel to the United States for deposition). The Third DCA issued a lengthy Opinion in the case. Although the two majority judges on the panel decided not to grant the Writ of Certiorari, they did so purely on jurisdictional grounds, finding that the order as written did not cause irreparable harm at this stage of the proceeding, because it “forecloses nothing, terminates nothing, dismisses nothing, and sanctions no one.” The majority expressed its faith in the trial judge’s ability to “manage this type of common discovery dispute,” and said “[w]e should wait and see what results,” leaving the door open for consideration of the matter on a final appeal.

Significantly, Judge Rothenberg wrote a 16 page dissent, stating that she would have granted the Writ. Judge Rothenberg found that the Probate Court’s order does cause irreparable harm, because it prevents two of the Austrian ladies’ claims from proceeding, thus shutting them out of the litigation regardless of whether their claims are dismissed, and forces the third lady to choose between traveling to the United States against doctor’s orders or also having her claim dismissed. The dissent found the Probate Court’s order to be an unduly harsh and improper sanction, since the three ladies did not commit any discovery violation or engage in any egregious conduct. Although our clients did not win the Petition, they consider themselves winners, because they only lost on jurisdictional grounds and can always take a later appeal from a final order of the Probate Court dismissing their claims, if that comes to pass. With Judge Rothenberg’s dissent, and the fact that the majority opinion did not find the Probate Court’s order proper on the merits, we are confident that the Probate Court will reconsider its position and allow for other discovery options, rather than dismissing our clients’ claims to the Estate. In the alternative, we are confident that our clients would be victorious on the merits in a final appeal.

The Law Offices of Robin Bresky is a dedicated appellate law firm handling
civil and criminal court appeals in all District Courts of Appeal in
Florida. The firm also provides effective trial and litigation support.
The firm serves Boca Raton, Delray Beach, Boynton Beach, West Palm Beach,
Coral Springs, Parkland, Margate, Lauderhill, Fort Lauderdale, Deerfield
Beach, Miami-Dade, Broward and Palm Beach Counties, and all the trial courts and
lower tribunals within the jurisdiction of the Fourth District Court of
Appeal, the federal Eleventh Circuit Court of Appeals, and the Florida
Supreme Court and all other appellate courts in Florida, including the
appellate divisions of the circuit courts (which hear appeals from county
courts).

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